All England Law Reports/1976/Volume 3 /R v Turnbull and others - [1976] 3 All ER 549

[1976] 3 All ER 549

R v Turnbull and others

COURT OF APPEAL, CRIMINAL DIVISION

LORD WIDGERY CJ, ROSKILL, LAWTON LJJ, CUSACK AND MAY JJ

6, 7, 9 JULY 1976

Criminal evidence - Identity - Visual identification - Possibility of mistaken identification - Direction to jury -Caution against relying on identification - Supporting evidence - Desirable that judge should identifysupporting evidence for jury - Case to be withdrawn from jury when identification unsupported.

Criminal law - Court of Appeal - Jurisdiction - Accused convicted after visual identification - Accuseddisputing identification - Whether Court of Appeal having jurisdiction to retry case - Circumstances in whichCourt of Appeal will interfere with jury's findings.

Whenever the case of an accused person depends wholly or substantially on the correctness of one or moreidentifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of thespecial need for caution before convicting in reliance on the correctness of the identification. He shouldinstruct them as to the reason for that warning and should make some reference to the possibility that amistaken witness could be a convincing one and that a number of witnesses could all be mistaken. Providedthat the warning is in clear terms, no particular words need be used. Furthermore, the judge should direct thejury to examine closely the circumstances in which the identification by each witness came to be made. If inany case, whether being dealt with summarily or on indictment, the prosecution have reason to believe thatthere is a material discrepancy between the description of the accused given to the police by the witnesswhen first seen and his actual appearance, they should supply the accused or his legal advisers withparticulars of the description the police were first given. In all cases, if the accused asks to be givenparticulars of any description, the prosecution should supply them. Finally, the judge

[1976] 3 All ER 549 at 550

should remind the jury of any specific weaknesses which have appeared in the identification evidence (see p551 j to p 552 d, post).

Where the quality of an identification is good, the jury can safely be left to assess the value of the identifyingevidence even if there is no other evidence in support, provided always that an adequate warning has beengiven about the special need for caution. However, where in the opinion of the judge the quality of theidentifying evidence is poor, he should withdraw the case from the jury and direct an acquittal unless there isother evidence which supports the correctness of the identification. That other evidence may be eithercorroboration in the legal sense or something which convinces the jury that the identification is not mistaken;any odd coincidence, if unexplained, may be supporting evidence. The judge should identify to the jury anyevidence which he adjudges capable of supporting the evidence of identification and he should tell the jury ifthere is any evidence or circumstances which cannot support an identification (see p 552 e and f and p 553 cand f, post).

The judge should tell the jury that the absence of the accused from the witness box cannot provide evidenceof anything, although they may take into consideration the fact that identification evidence has not been

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contradicted by the accused. The judge should take care in directing the jury about the support for anidentification which may be derived from the fact that they have rejected an alibi. False alibis may be putforward for many reasons and it is only when the jury are satisfied that the sole reason for fabrication of analibi was to deceive them, that fabrication can support identification evidence. The judge should remind thejury that proof that the accused has lied about his whereabouts at the material time does not prove that hewas where the identifying witness says he was (see p 553 f to j, post).

A failure to follow these guidelines is likely to result in a conviction being quashed, and will so result if, in thejudgment of the Court of Appeal, on all the evidence, the verdict is either unsatisfactory or unsafe. However,the Court of Appeal has no jurisdiction to retry a case; it is for the jury in each case to decide whichwitnesses should be believed. The Court of Appeal will only interfere on matters of credibility if (1) the juryhave been misdirected as to how to assess the evidence, (2) there has been no direction at all when thereshould have been one or (3) on the whole of the evidence, the jury must have taken a perverse view of awitness (see p 554 c to e, post).

Note

For identification in criminal cases, see 11 Halsbury's Laws (4th Edn) para 363.

Cases referred to in judgment

R v Long (1973) 57 Cr App Rep 871, CA, Digest (Cont Vol D) 170, 3309fb.

Appeals and application

R v Turnbull R v Camelo

On 13 October 1975 in the Crown Court at Newcastle-upon-Tyne before his Honour Judge SmithQC the appellants, Raymond Turnbull and Joseph Nicholas David Camelo, were jointly convictedafter a retrial of conspiracy to burgle and were both sentenced to three years' imprisonment. Bothappealed against conviction with leave of the single judge and Turnbull applied for leave to appealagainst sentence. The facts are set out in the judgment of the court.

G F R Harkins for Turnbull.

Denis Orde for Camelo.

John Mathew and M R Bell for the Crown.

6 July. At the conclusion of argument the court dismissed the appeals, stating that its reasons for doing sowould be given at a later date.

[1976] 3 All ER 549 at 551

R v Roberts

On 11 February 1976 in the Crown Court at Plymouth before his Honour Judge Lavington the appellant,Graham Francis Roberts, was convicted of unlawful wounding and on 12 February he was sentenced tothree months' detention and ordered to pay £18·4350 compensation. He appealed against conviction withleave of the single judge. The facts are set out in the judgment of the court.

M R Selfe for Roberts.

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John Mathew and A M Donne for the Crown.

R v Whitby

On 13 November 1974 at the Central Criminal Court before his Honour Judge Argyle QC the appellant,Christopher John Whitby, was convicted of robbery and pleaded guilty to possession of cannabis andcannabis resin. On 10 December, after an adjournment for a social enquiry report, he was sentenced to sixyears' imprisonment for robbery, to one month's imprisonment concurrent for the possession of drugs, and asuspended sentence of six months' imprisonment imposed on 15 August 1973 for handling stolen goods wasordered to take effect concurrently. He applied for leave to appeal against conviction. On 13 May 1976 hisapplication came before the Court of Appeal, Criminal Division (James, Ormrod LJJ and Mars-Jones J) whenthe court stated that the appeal would be adjourned for the full court to consider the guidelines which shouldbe given to judges in disputed identification cases.

Ronald Grey and H W Allardyce for Whitby.

John Mathew and R G Hawkins for the Crown.

7 July. At the conclusion of argument the court allowed the appeals of Roberts and Whitby stating that itsreasons for doing so would be given at a later date.

Cur adv vult

9 July 1976. The following judgment was delivered.

LORD WIDGERY CJ

read the following judgment of the court. On 13 October 1975 at Newcastle-upon-Tyne Crown Court theappellants Turnbull and Camelo were convicted of conspiracy to burgle. They were each sentenced to threeyears' imprisonment. They both appeal against conviction by leave of the single judge. On 13 November1974 at the Central Criminal Court the appellant Whitby was convicted of robbery and sentenced to six years'imprisonment. He appeals against his conviction by leave of this court. On 11 February 1976 at PlymouthCrown Court the appellant Roberts was convicted of unlawful wounding and sentenced to three months'detention which he has served. He appeals against his conviction by leave of the single judge.

Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Suchevidence can bring about miscarriages of justice and has done so in a few cases in recent years. Thenumber of such cases, although small compared with the number in which evidence of visual identification isknown to be satisfactory, necessitates steps being taken by the courts, including this court, to reduce thatnumber as far as is possible. In our judgment the danger of miscarriages of justice occurring can be muchreduced if trial judges sum up to juries in the way indicated in this judgment.

First, whenever the case against an accused depends wholly or substantially on the correctness of one ormore identifications of the accused which the defence alleges to be mistaken, the judge should warn the juryof the special need for caution before convicting the accused in reliance on the correctness of theidentification or identifications. In addition he should instruct them as to the reason for the need for such a

[1976] 3 All ER 549 at 552

warning and should make some reference to the possibility that a mistaken witness can be a convincing one

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and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge neednot use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification byeach witness came to be made. How long did the witness have the accused under observation? At whatdistance? In what light? Was the observation impeded in any way, as for example by passing traffic or apress of people? Had the witness ever seen the accused before? How often? If only occasionally, had heany special reason for remembering the accused? How long elapsed between the original observation andthe subsequent identification to the police? Was there any material discrepancy between the description ofthe accused given to the police by the witness when first seen by them and his actual appearance? If in anycase, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe thatthere is such a material discrepancy they should supply the accused or his legal advisers with particulars ofthe description the police were first given. In all cases if the accused asks to be given particulars of suchdescriptions, the prosecution should supply them. Finally, he should remind the jury of any specificweaknesses which had appeared in the identification evidence. Recognition may be more reliable thanidentification of a stranger; but, even when the witness is purporting to recognise someone whom he knows,the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

All these matters go to the quality of the identification evidence. If the quality is good and remains good at theclose of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality,the greater the danger. In our judgment, when the quality is good, as for example when the identification ismade after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a closefriend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidenceeven though there is no other evidence to support it; provided always, however, that an adequate warninghas been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justicewould frequently occur. A few examples, taken over the whole spectrum of criminal activity, will illustratewhat the effects on the maintenance of law and order would be if any law were enacted that no person couldbe convicted on evidence of visual identification alone.

Here are the examples. A had been kidnapped and held to ransom over many days. His captor stayed withhim all the time. At last he was released but he did not know the identity of his kidnapper nor where he hadbeen kept. Months later the police arrested X for robbery and as a result of what they had been told by aninformer they suspected him of the kidnapping. They had no other evidence. They arranged for A to attendan identify parade. He picked out X without hesitation. At X's trial, is the trial judge to rule at the end of theprosecution's case that X must be acquitted?

This is another example. Over a period of a week two police officers, B and C, kept observations in turn on ahouse which was suspected of being a distribution centre for drugs. A suspected supplier, Y, visited it fromtime to time. On the last day of the observation B saw Y enter the house. He at once signalled to otherwaiting police officers, who had a search warrant to enter. They did so; but by the time they got in, Y hadescaped by a back window. Six months later C saw Y in the street and arrested him. Y at once alleged that Chad mistaken him for someone else. At an identity parade he was picked out by B. Would it really be rightand in the interests of justice for a judge to direct Y's acquittal at the end of the prosecution's case?

A rule such as the one under consideration would gravely impede the police in their work and would makethe conviction of street offenders such as pickpockets, car thieves and the disorderly very difficult. But itwould not only be the police who might be aggrieved by such a rule. Take the case of a factory worker, D,who during

[1976] 3 All ER 549 at 553

the course of his work went to the locker room to get something from his jacket which he had forgotten. Ashe went in he saw a workmate, Z, whom he had known for years and who worked near him in the same

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shop, standing by D's open locker with his hand inside. He hailed the thief by name. Z turned round andfaced D; he dropped D's wallet on the floor and ran out of the locker room by another door. D reported whathe had seen to his chargehand. When the chargehand went to find Z, he saw him walking towards hismachine. Z alleged that D had been mistaken. A directed acquittal might well be greatly resented not only byD but by many others in the same shop.

When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when itdepends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation isvery different. The judge should then withdraw the case from the jury and direct an acquittal unless there isother evidence which goes to support the correctness of the identification. This may be corroboration in thesense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been nomistaken identification. For example, X sees the accused snatch a woman's handbag; he gets only a fleetingglance of the thief's face as he runs off but he does see him entering a nearby house. Later he picks out theaccused on an identity parade. If there was no more evidence than this, the poor quality of the identificationwould require the judge to withdraw the case from the jury; but this would not be so if there was evidencethat the house into which the accused was alleged by X to have run was his father's. Another example ofsupporting evidence not amounting to corroboration in a technical sense is to be found in R v Long. Theaccused, who was charged with robbery, had been identified by three witnesses in different places ondifferent occasions, but each had only a momentary opportunity for observation. Immediately after therobbery the accused had left his home and could not be found by the police. When later he was seen bythem he claimed to know who had done the robbery and offered to help to find the robbers. At his trial he putforward an alibi which the jury rejected. It was an odd coincidence that the witnesses should have identified aman who had behaved in this way. In our judgment odd coincidences can, if unexplained, be supportingevidence.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting theevidence of identification. If there is any evidence or circumstance which the jury might think was supportingwhen it did not have this quality, the judge should say so. A jury, for example, might think that support foridentification evidence could be found in the fact that the accused had not given evidence before them. Anaccused's absence from the witness box cannot provide evidence of anything and the judge should tell thejury so. But he would be entitled to tell them that when assessing the quality of the identification evidencethey could take into consideration the fact that it was uncontradicted by any evidence coming from theaccused himself.

Care should be taken by the judge when directing the jury about the support for an identification which maybe derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons:an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibiand get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibiwitnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is onlywhen the jury are satisfied that the sole reason for the fabrication was to deceive them and there is no otherexplanation for its being put forward, that fabrication can provide any support for identification evidence. Thejury should be reminded that proving the accused has told lies about where he was at the material time doesnot by itself prove that he was where the identifying witness says he was.

[1976] 3 All ER 549 at 554

In setting out these guidelines for trial judges, which involve only changes of practice, not law, we have triedto follow the recommendations set out in the report which Lord Devlin's committee made to the Secretary ofState for the Home Department in April 1976a. We have not followed that report in using the phrase'exceptional circumstances' to describe situations in which the risk of mistaken identification is reduced. Inour judgment, the use of such a phrase is likely to result in the build-up of case law as to what circumstancescan properly be described as exceptional and what cannot. Case law of this kind is likely to be a fetter on theadministration of justice when so much depends on the quality of the evidence in each case. Quality is whatmatters in the end. In many cases the exceptional circumstances to which the report refers will provide

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evidence of good quality, but they may not; the converse is also true.

a Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification inCriminal Cases (chairman: Lord Devlin) (1976) HC 338

A failure to follow these guidelines is likely to result in a conviction being quashed and will do so if in thejudgment of this court on all the evidence the verdict is either unsatisfactory or unsafe. Having regard topublic disquiet about the possibility of miscarriages of justice in this class of case, some explanation of thejurisdiction of this court may be opportune. That jurisdiction is statutory: we can do no more than the CriminalAppeal Act 1968 authorises us to do. It does not authorise us to retry cases. It is for the jury in each case todecide which witnesses should be believed. On matters of credibility this court will only interfere in threecircumstances: first, if the jury has been misdirected as to how to assess the evidence; secondly, if there hasbeen no direction at all when there should have been one; and, thirdly, if on the whole of the evidence thejury must have taken a perverse view of a witness, but this is rare.

The limitations, such as they are, on our jurisdiction do not mean that we cannot interfere to preventmiscarriages of justice. In 1966 Parliament released appellate jurisdiction in criminal cases tried onindictment from the limitations which the Criminal Appeal Act 1907 and the case law based on it had put onthe old Court of Criminal Appeal. The jurisdiction of this court is wider. We do not hesitate to use ourextended jurisdiction whenever the evidence in a case justifies our doing so. In assessing a case, however, itis our duty to use our experience of the administration of justice. In every division of this court thatexperience is likely to be extensive and helps us to detect the specious, the irrelevant and what is intendedto deceive.

We turn now to consider the facts of these appeals in the light of those observations. First, the Turnbull andCamelo appeal: these two appellants were convicted on a retrial. The case for the Crown in short was thatthe two appellants had devised a scheme whereby they could induce shopkeepers, customers of theGosforth branch of Lloyds Bank Ltd, to post their night safe wallets containing their day's takings through theordinary letter box in the main front door of the bank instead of into the night safe. The appellants thenintended that in the course of the following night or weekend they would break into the bank through awindow at the rear of the branch, which was unprotected by any burglar alarm, and remove the wallets whichwould conveniently be lying on the floor just within the bank's front door.

The first step in the conspiracy was to put the night safe out of action by inserting a bent nail into its lock. Anotice typed on bank notepaper and purporting to be signed by a non-existent area manager was then fixedabove the night safe. This notice informed customers that owing to vandalism the night safe was out of orderand advised them to put their deposits through the bank letterbox. Over the latter a card was fixed on whichwas boldly printed the message: 'NIGHT SAFE HERE'.

Between about 5.30 pm and 6.30 pm on 21 December 1974 a number of unsuspecting shopkeepers and theemployees of one security firm, following the instructions on the two notices, posted wallets containing over£5,000 takings through the bank's letterbox. One shopkeeper, however, became suspicious and got in touch

[1976] 3 All ER 549 at 555

with the police. In the result, at 7.10 pm, the bank manager, Mr Salkeld, and his assistant, Mr Alderson,accompanied by two police constables, went to the bank. They waited outside until the police constables

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were relieved by Det Sgt Wakenshaw, and then the two bank officials and the detective segeant went inside.They then set about making preparations to entrap whoever might be the intended burglars.

Mr Alderson gave evidence that at about 8.00 pm he was by the front door substituting empty for the fullnight safe wallets, when he heard a rustling sound just outside and close to the letterbox. He opened thedoor and found that the notice that had been fixed just above the letterbox had been removed. He shouted toalert Mr Salkeld and Det Sgt Wakenshaw and, whilst just outside the front door, saw a man walking close tothe outside wall of the bank in which the night safe was installed. He described this man as about 5 ft 8 install, as having dark hair and as wearing a three-quarter length coat similar to the coat which Turnbull wassubsequently shown to have been wearing that night, and which was produced as an exhibit at the trial. MrAlderson, however, did not see the man's face. Nevertheless, the description of the man which he did givefitted Turnbull so far as it went.

In his turn, Mr Salkeld gave evidence that when he heard Mr Alderson's shout he went out of the bank's frontdoor and walked clockwise round the bank by way of the main road on to which it faced, a small back lane,and a side road which entered the main road close to the front door of the bank. As he did this he saw a vanin that side road and took its number. There was no dispute at the trial that that van had been hired byCamelo shortly before these events and that he was driving it that night. On reaching the main road, the vanturned left away from the bank and in the direction of Newcastle. Mr Salkeld himself had been unable torecognise anyone who may have been in the van. However, by this time Det Sgt Wakenshaw was outsidethe bank's front door and he gave unchallenged evidence to the effect that two or three minutes after 8.00pm he had there seen a van with Camelo at the wheel drive past fairly slowly down the side road and turn leftinto the main road.

The principal witness on identity, however, for the Crown was a Det Con Smith. He gave evidence that onthe relevant night he had signed off duty at Gosforth police station, which was not far from the bank, at 8.00pm. He went to the car park at the rear of the police station and drove into the main road to which referencehas been made and along it towards the bank. As he did so, and at a point which it was agreed was some 62yards from the front door of the bank, Det Con Smith said that he saw a man in that doorway who seemed tobe taking a notice from the door of the bank. The man left the doorway and started to walk to his left alongthe pavement with his shoulders hunched to the point in the wall of the bank where the night safe was. Therehe pulled another notice quickly off it and as he did so he glanced briefly to his right, that is to say along themain road in the direction from which Det Con Smith had been coming.

At the time Det Con Smith's car was just passing the bank, some ten yards or so from the night safe and DetCon Smith's evidence was that as the man turned his head he (Smith) recognised him and recognised himas Turnbull. The latter was a man whom the officer had known for some time. Det Con Smith said that it wasa well-lit street and that he had no difficulty in recognising Turnbull. Very shortly after this, Smith saw twomen run from the side road into the main road and recognised one of them as Det Sgt Wakenshaw. Theother in all probability was Mr Salkeld. Det Con Smith then drove in a wide sweep round the bank in anattempt to intercept Turnbull, but did not see him. He did, however, meet another police officer and, havingspoken to him, drove home. He said that about half an hour later he spoke on the telephone to Det SgtWakenshaw, and that on the following morning, as soon as he reported for duty at the police station, heentered in his notebook that which he had seen on the previous night. Naturally, Det Con Smith wascross-examined strongly by counsel for each appellant; various criticisms and matters arising out of hisevidence were put

[1976] 3 All ER 549 at 556

to him, but it is not necessary for the purposes of this judgment to go into them in detail.

The action then moved to another part of Gosforth, about a mile away from the bank. A woman policeconstable, Pc Thompson, gave evidence, which was not disputed, that at 8.05 pm she was on duty in a

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police vehicle with Pc Sewell. They saw a blue van with two people in it travelling at a fast speed. Havingreceived a wireless message, they followed it and ultimately were able to stop it. As they did so she sawTurnbull stepping on to the pavement from the side of some bushes nearby. Camelo was in the driver's seatof the van. She went across and searched the bushes and there she found a number of housebreakingimplements.

In the result both Turnbull and Camelo were then arrested, taken to the police station and cautioned. In thecourse of subsequent questioning Camelo purported not to know Turnbull, but it was suggested that ifCamelo had said this to the police officer it was said in a purely flippant manner, for it was admitted by thedefence at the trial that Turnbull and Camelo did in fact know each other at all material times.

On the facts as outlined, the case against both Turnbull and Camelo of course rested principally on Det ConSmith's evidence of his identification of Turnbull. Before the jury could convict either Turnbull or Camelo theyhad to be satisfied of both the honesty and the correctness of this identification. Each of these aspects waschallenged not only in the court below, but also in this court. The first can be disposed of shortly. The jurysaw and heard Det Con Smith giving evidence, and being cross-examined, and the criticisms made of hisevidence were fully put to them in the course of the summing-up, of which no criticism has been or indeedcould be made. By their verdict the jury clearly indicated that they thought this police officer to be an honestwitness and there is no ground whatever on which this court could come to any contrary conclusion.

On the question of the correctness of the identification, the learned judge did warn the jury of the specialneed for caution and also explained to them the reason for this. On the other hand, as the appellant'scounsel contended before this court, Det Con Smith only had a brief fleeting view of the side of Turnbull'sface at night, albeit in a well-lit street, from a moving motor car. His identification in such circumstances, itwas submitted, could not be relied on and consequently he contended that the jury's verdict should be setaside as unsafe and unsatisfactory.

Counsel for the Crown accepted that what we have called the quality of the identification by Det Con Smithcould not be said to have been good, and indicated that had there been no other supporting evidence hewould not have been disposed to argue that the appellants' conviction should stand. In the circumstances ofthe present case, however, and seeking to apply the general principles to which we have referred, hecontended that there was ample other evidence which went to support the correctness of Det Con Smith'sidentification. He pointed out that Det Con Smith already knew Turnbull and that his was more recognitionthan mere identification. Both Det Con Smith and Mr Alderson gave a general description of the man theyeach saw and of the coat which he was wearing that night which was consistent with the facts. A vanrecently hired by Camelo was in the vicinity at the relevant time and Det Sgt Wakenshaw had recognisedCamelo at the wheel as the van passed the bank. A few minutes later, when the van was stopped a mile orso away, both Camelo and Turnbull were in it and there was substantial evidence that at about that time thelatter at least had been in possession of housebreaking implements.

We agree. All this was in our judgment clearly evidence which went to support the correctness of Det ConSmith's identification of Turnbull, and thus the implication that both he and Camelo had conspired ascharged. Given the honesty of Det Con Smith's identification which, as we have said, the jury must haveaccepted, our opinion is that there can be no real doubt about its accuracy. In the result, we do not think thatit can be said that the verdicts in this case were in any way unsafe or unsatisfactory and these appealsagainst conviction are therefore dismissed. Insofar as

[1976] 3 All ER 549 at 557

Turnbull's renewed application for leave to appeal against sentence is concerned, we have already indicatedthat this too is dismissed. This was a sophisticated plan to burgle bank premises, and had it succeeded theappellants would have stolen over £5,000. The sentences passed can be criticised neither in principle norextent and it was for these reasons that Turnbull's further application was dismissed.

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Then we pass to Roberts's appeal. The offence was alleged to have taken place on the evening of 26 July1975 at a dance hall in Plymouth in a passageway behind the stage. According to the victim, a man namedTaylor, somebody bumped into him and then butted him on the nose. This led to an exchange of blows andthen Taylor's assailant hit him on the top of the head with a pint beer glass. There is some conflict whetherthe glass was broken on Taylor's head or whether it was deliberately smashed against a wall before beingused on his head, but in the result he had to have 20 stitches in his head and shoulder. His assailant ranaway.

Nothing further material occurred until 13 December 1975, approximately five months later, when theappellant was at the dance hall where the wounding had taken place. Taylor was there too and claimed torecognise the appellant as the man who had attacked him the previous July. The appellant at once deniedthat he knew anything about it. On 18 December the appellant was put on an identification parade. A MissKennedy who had witnessed the attack picked him out as the assailant. Her boy friend, one Inman, who hadbeen with her at the material time, picked out somebody quite different who certainly had nothing to do withthe matter.

At the trial Taylor and Miss Kennedy again identified the appellant. At the end of the prosecution case asubmission was made inviting the judge to withdraw the case from the jury, but he rejected this and in duecourse the jury convicted. No criticism is made of the summing-up save that it was said there was an error innot pointing out that Inman admitted in cross-examination that he had had as good a view as Miss Kennedy.This court is, however, asked to hold that the verdict was unsafe and unsatisfactory.

The case for the appellant can be summarised in this way. First, that the identifying witnesses did not claimto have known the assailant before the attack. Secondly, that the attack was all over in a few moments.Thirdly, that the place where the attack took place was dark, lit only by flashing lights of the kind popular indance halls. Fourthly, that the appellant's conduct after he had been accused was consistent with thehonesty of his denial and that in particular he did not deny that he might have been at the dance hall on theevening in question or seek to set up an alibi. He simply said that it was so long ago that he could notremember where he was. Fifthly, it was pointed out that Inman, who had had as good a view as MissKennedy, could not identify the appellant. Finally, there were discrepancies and contradictions in thedescriptions of the assailant given by the identifying witnesses. As to this last matter, Taylor's originaldescription of his attacker was that he had thick black curlyish hair which was collar length, long thicksideburns which appeared to be joined like a beard and that he was wearing a white lightweight jumper witha design on it. In evidence-in-chief he described the hair as shoulder length and the clothing as a whitefloppy jumper. He claimed to have seen the man for a couple of seconds. In cross-examination he describedthe garment as a white heavyweight cardigan. He did not think his attacker had a beard, though he was notsure, but he was positive the man had a moustache.

Miss Kennedy described the man as having lightish bushy shoulder length hair and as wearing a whiteT-shirt. In cross-examination she was positive he had a beard and moustache. There were alsodiscrepancies about the assailant's height. There was, moreover, evidence that the appellant had never hada beard and had not grown a moustache until after the date of the attack. No suggestion was made that theidentifying witnesses were dishonest. It is conceded that Miss Kennedy in particular was an impressivewitness. But the quality of the identifications was not good, indeed

[1976] 3 All ER 549 at 558

there were notable weaknesses in it and there was no evidence capable of supporting the identificationsmade.

We think it would have been wiser for the trial judge to have withdrawn the case from the jury. In thecircumstances, the verdict was unsafe and unsatisfactory and for that reason we have allowed the appeal,applying the general principles enumerated earlier in this judgment.

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Then, finally, there is the Whitby appeal. The case against this appellant was based principally on evidenceof identification. A man called Lenik was indicted with Whitby; he was acquitted. On 15 March 1975 leave toappeal against conviction and sentence was originally refused by the single judge. On 24 March 1975 theseapplications were renewed. For the purposes of this appeal it is sufficient to say that over the ensuingmonths information was received and investigated by the Metropolitan Police with the result that they weresatisfied that there had been an incorrect identification in this case and that the appellant had not in factcommitted the offence of which he had been convicted.

On 11 November 1975 the Director of Public Prosecutions informed the registrar of this court by letter that hehad taken over the conduct of this case on behalf of the Crown. The appellant's renewed applicationsultimately came before this court on 13 May 1976. On that occasion counsel for the Crown indicated thatthose concerned with the prosecution had by then grave doubts about the justice of the conviction and that inconsequence his instructions were to assist the court in any way that he could rather than actively to respondto the appellant's appeal. In those circumstances, this court granted leave to appeal and adjourned thehearing to a date to be fixed. It was in fact this particular case which led to the convening of this full court toconsider the various problems which have arisen relating to identification evidence in criminal cases, andwhich has resulted in the judgment which this court is now delivering.

The brief facts of the case are that on 14 February 1974 a number of men attempted to steal some £23,000from the wages office of EMI Ltd in Uxbridge Road, Hayes. This was money to pay employees' wages andhad been delivered to the premises shortly before. Two men entered the office next to that in which themoney had been placed. One, and possibly both of them, were wearing balaclava helmets. One man wascarrying a wooden cosh, the other a pistol. With these they threatened two clerks in the wages office, MrByrne and Mr Marshall, and taking the wages bags in holdalls which they were also carrying they made offdown a corridor. There they were confronted by another EMI employee. He managed to snatch the holdallfrom one man before he hit him with a hammer and the other robber struck at him with the wooden cosh. Thetwo men then ran on towards the works entrance, and before they escaped in a stolen motor car driven by athird man they were seen in different circumstances by a number of other witnesses. In all, including MrByrne and Mr Marshall, the robbers were seen by a total of 14 witnesses.

When Mr Marshall was first seen by the police very shortly after the robbery he told them that he could notdescribe the man who it was alleged was Whitby nor assess his age. Nevertheless, he subsequently decidedthat he did know the man with the balaclava who had threatened him. He decided that it had been Whitby,whom he knew as a fellow employee with EMI, and he consequently gave the police Whitby's name andaddress. Both Whitby and Lenik were employed by EMI at that time. They worked together on the night shiftand had finished work that morning at about 7.00 am. Whitby's evidence was that he took Lenik home in hiscar and then went on to his own home where he went to bed.

Later that day, however, having been given his name and address by Marshall, the police arrested Whitbyand took him to the local police station. He at once denied that he was in any way concerned in the robberyand maintained this denial throughout. He contended that at the time the robbery was being committed hewas in bed at home. In this he was supported by his wife who gave evidence to this effect at the trial.Whitby's house was searched, but the only articles of relevance found were a

[1976] 3 All ER 549 at 559

number of toy guns which he said were his children's. One of them was a somewhat realistic imitation of areal pistol.

In the course of interrogation at the police station, Whitby gave two answers which at one stage of the trial itwas suggested could be considered as admissions, notwithstanding that overall he was denying anycomplicity on his part. We were told, however, that counsel for the Crown did not rely on them in his finaladdress to the jury at the Central Criminal Court.

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Forensic examination of the appellant's clothing revealed a small fragment of glass which was similar to thatof the windscreen of the getaway car used by the robbers and which was shattered by one of the witnessestrying to prevent their escape. Finally, the day after his arrest, the appellant was put on an identity parade. Ofthe 14 witnesses to the robbery, 12 attended and three purported to identify the appellant. This essentiallywas the evidence led against the appellant at the trial and, as will be clear, it was founded on theidentification said to have been made by the three witnesses of him on the identification parade.

In the course of his summing-up the learned judge did warn the jury that mistakes in identification arepossible, but in our opinion the warning that he gave was inadequate. Further, any effect that it might havehad on the jury was, we think, nullified by his final comment on the point:

'Nevertheless [the judge said] make no bones about it, there is a massive block of prosecution evidence implicatingthese two accused in this robbery, three people have identified each of them.'

Further, the learned judge gave the jury no help about the quality of the identification of the appellant, whichin our view was meagre in the extreme. So far as Marshall was concerned, as we have already said, he haddecided that this appellant had been one of the robbers before he attended any identification parade, andsome time after he had told the police he was unable to describe him. That in these circumstances Marshallpicked out this appellant on the parade, when his mind was already made up, clearly added nothing to thecase against this appellant. The learned judge put this point before the jury merely as an argument raised bythe defence. In our view this was not sufficient: the jury should have been given a clear direction aboutMarshall's purported identification of the appellant on the parade.

Insofar as the identification of the appellant by the other two witnesses on the parade was concerned, one ofthem had at the robbery only seen the man whom he said had been the appellant from the rear. The otherhad given to the police before the parade a description of a man which in no way fitted the description of theappellant in fact. In addition one must remember that all these identifications were of a man wearing abalaclava helmet who was only seen for a short time in the hurly-burly of a robbery and subsequent chase.Clearly the quality of the identifications in this case was very poor.

Was there any supporting evidence? In the course of his summing-up the learned judge in effect put beforethe jury the three matters to which we have already referred. First, what were said to amount to admissionsin the course of the questioning of this appellant by the police. Counsel for the Crown in this court told us thathe did not rely on these any more than did counsel for the Crown at the trial when all the evidence had beencalled and he was addressing the jury at the end. We agree and in our view nothing that was said by thisappellant to the police could in any way be said to be evidence supporting the identifications.

Secondly, the toy gun. There was no real evidence that the man thought to have been this appellant evenhad a gun at any time during the robbery and in any event we do not think that the discovery of an imitationpistol among his children's toys when his house was searched was in any way supportive of the poor qualityof the identifications which were made.

Thirdly, the fragment of glass found on the appellant's coat. As we have said, there[1976] 3 All ER 549 at 560

was evidence that this was similar to the glass of the windscreen of the get-away car. The forensic witnessgiving this evidence, however, also accepted that this was a very common type of windscreen glass. Further,there was substantial evidence called on behalf of this appellant that the windscreen of his own similar carhad shattered two or three months earlier and that the small piece of glass might well have come from this.

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In the result the evidence on this point was entirely neutral. This was accepted by counsel for the Crown inthe course of the argument on this appeal. In these circumstances we do not think that evidence of thefinding of a fragment of glass on the appellant's coat in any way went to support the correctness of theidentifications by the three witnesses.

Finally, we feel that we should refer briefly to the way in which the learned judge dealt with the appellant'swife's evidence at the trial. She was called to support his alibi, as such it effectively was, that at the time ofthe robbery he was in bed asleep at home. Of her evidence the trial judge said:

'Let me say, straightaway, one hates to pry into these things as between husband and wife, it is extremely distasteful,and what can the poor wife do other than back her husband up as much as she possibly can. This is not a criticism ofher evidence at all, and you must approach her evidence on the same basis as that of all the other witnesses.'

In the first place, the two sentences just quoted were mutually inconsistent. What else was the first otherthan a criticism of the appellant's wife's evidence? Secondly, we think that the comment as it was left wasunfortunate in that the learned judge did not go on to point out to the jury that as the appellant's alibi was thathe was at home with his wife, who else could he have called to support it? This is a situation which notinfrequently arises. In such circumstances it will almost certainly be present in the jury's mind that the witnessis the defendant's wife and they will no doubt make what they think is the proper allowance for this fact. Theyshould, however, be warned in most, if not all, similar cases that they should not necessarily regard the factthat the witness is the defendant's wife as derogating from the worth of her evidence when the nature andcontent of the defence is such that anyone would expect her to be called as a witness in any event.

In the result, we think that the quality of the identification evidence in this case was very poor and that therewas no evidence of the nature to which we have referred put before the jury which could be said to supportthe correctness of the identifications. It follows, in our judgment, that the statement by the learned judge thatthere was a 'massive block of evidence' implicating the appellant was factually incorrect and in consequencea serious misdirection. In these circumstances we have no doubt that this conviction was both unsafe andunsatisfactory, and it was on these grounds that we allowed this appeal.

Appeals of Turnbull and Camelo dismissed.

Appeals of Roberts and Whitby allowed; convictions quashed.

Solicitors: Registrar of Criminal Appeals (for Turnbull, Camelo and Roberts); Reginald Johnson & Co, Hayes(for Whitby); Director of Public Prosecutions.

N P Metcalfe Esq Barrister.

[1976] 3 All ER 549 at 561

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